A constitutional amendment before Colorado voters this fall would create a new board to hear ethics complaints against state judges and issue rulings, taking the judicial discipline process largely out of the hands of the state Supreme Court.
If approved, Amendment H would also make disciplinary proceedings against judges public when formal charges are filed. Today, such hearings are kept secret unless a state commission makes a formal recommendation for sanctions.
The measure was referred to the Nov. 5 ballot by the state Legislature in 2023 at the recommendation of a special committee set up to study Colorado’s judicial disciplinary system. The existing process – which puts judges in charge of policing their own profession – has come under fire for a lack of transparency and accountability.
Because Amendment H would amend the state constitution, it requires 55% approval to pass.
Here’s what else you should know before you vote.
Currently, when someone alleges misconduct by a judge, the complaint is sent first to the 10-person Commission on Judicial Discipline.
The commission includes four judges appointed by the chief justice of the Colorado Supreme Court and two attorneys appointed by the governor. The governor also appoints four citizens who are not currently judges or lawyers.
The commission screens the complaints to make sure they qualify as potential misconduct and investigates those that do. Then it can either dismiss the complaint, discipline the judge secretly, hold an informal hearing, or call for a formal hearing led by a panel of judges appointed by the Supreme Court.
After that, the commission reviews the panel’s findings and can make a formal recommendation to the Supreme Court for discipline. It’s only at that point that a complaint or the investigation’s findings are released to the public, according to the nonpartisan state voter’s guide.
The Supreme Court itself has final say on whether a judge should be publicly disciplined. If the complaint involves a Supreme Court justice or members of their family or staff, the court has to call an independent tribunal of seven Court of Appeals judges selected at random.
The measure would create the Independent Judicial Discipline Adjudicative Board to preside over disciplinary hearings and impose sanctions.
Its members would be appointed by Colorado Supreme Court and the governor, and confirmed by the state Senate.
Under the new process, the director of the existing Commission on Judicial Discipline would first screen complaints to make sure they qualify. The commission would investigate the complaints and could still dismiss them or issue an informal punishment like it can now.
But if the commission calls for a formal hearing, the new independent board would preside over the case and determine whether to order punishment. The charges against the judge and related records are made public at the start of the formal hearing, no matter the outcome.
The board’s decisions can be appealed to the Supreme Court – but can only be overturned if there’s proof that a legal or factual error was made in the decision.
In cases where an independent tribunal is needed, the panel would be composed of randomly selected District and Appeals Court judges, rather than Appeals Court judges alone.
The proposal emerged from an interim legislative committee created in 2022, the year after an alleged blackmail scandal and cover-up of judicial misconduct, sexism and harassment was first reported by The Denver Post.
The committee’s final report concluded that the existing process was so secretive that victims couldn’t even track their own complaints. It also found that Judicial Department employees fear retaliation, and their distrust in the complaint system may have led to a number of ethical violations going unreported.
Colorado is just one of 15 states that conduct judicial disciplinary hearings in private.
In response, the Legislature passed three reform measures suggested by the committee, including the referred measure to amend the constitution.
Nonetheless, some critics of the current process say the reforms don’t go far enough in a state where independent investigations have found that judicial misconduct runs rampant and unreported.
For one thing, the judiciary would still have influence over the independent board through the Supreme Court’s appointments.
For another, most complaints still wouldn’t make it into the public light. Last year, the commission received 344 complaints, 251 of which were dismissed before even an informal review by the commission. That was nearly 100 more complaints than were filed a year earlier, when 94% were dismissed without an investigation.
Only three judges were disciplined publicly in 2023, including former Chief Justice Nathan B. Coats, for his alleged role in awarding a top Judicial Department official a $2.75 million contract as she left her job. Two others were censured privately.
As of the most recent filing deadline at the end of September, no campaign committees had been formed to support or oppose the measure, according to the Colorado Secretary of State’s Office.
The measure has wide bipartisan support from the state Legislature, which voted 97 to 1 to approve House Concurrent Resolution 1001.
The Judicial Integrity Project, a watchdog group, opposes the measure, arguing it wouldn’t do enough to increase transparency and ensure accountability.
Nonpartisan legislative staff creates a guide for each initiative on the statewide ballot. You can find their analysis of Amendment H here.
You can read the full text of the ballot measure here.
